Many organisations have campaigned long and hard for legislation to enshrine fundamental human rights in UK law. Some have sought the creation of a specific UK Bill of Rights, but the chosen route of the Labour government is the incorporation into domestic law of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention dates from 1950 and is usually referred to as the European Convention on Human Rights.
The incorporation of the Convention into UK law will have far-reaching effects. Some of these have already been extensively discussed in the media, particularly the likelihood that greater protection against press intrusion will result from the application of the Convention's right to privacy. We shall focus on how the legislation will work in practice and highlight a few areas where the new law may have an impact on employment and trade union rights.
How will it work? Judges and Parliament
The Human Rights Act will impose new duties on judges, ministers and Parliament. When Ministers are introducing new legislation, they must make a statement to Parliament on whether the provisions of the new law are compatible with Convention rights.
Judges must apply and give effect to UK legislation in a way which is consistent with Convention rights. This applies to new and existing legislation, to regulations and to Acts of Parliament.
If a court considers that a provision of an Act of Parliament is incompatible with a Convention right, it may make a declaration of incompatibility. The Government is entitled to advance notice of this and to argue that the provision is compatible. Where a declaration of incompatibility is made, the Government may make use of a fast-track procedure to amend the legislation to bring it into line.
Convention rights
The following Articles of the Convention, which will be incorporated into UK law, may be relevant in employment rights cases.
Article 4
Prohibition of slave and enforced labour
This may be relevant to domestic servants and work under duress. However, the cases at the European Court of Human Rights (ECHR) have not been entirely helpful.
They do not suggest that "force or compulsion" extends as far as economic duress. The ECHR cases broadly suggest that if someone does not like the terms under which they are required to work, their remedy is to resign and not undertake the work.
Specific provisions regarding "work required to be done in the ordinary course of detention" mean that the Convention would not help in relation to work which inmates are required to carry out in state and privatised prisons.
Article 5
Right to liberty and security of person
This will be relevant for those detained unlawfully and may also assist workers whose employers fail to take adequate steps to keep them safe from assault and violence at work.
Article 6
Right to a fair trial
This will be of particular importance in criminal cases, but will also have significance in relation to employment rights. In determining civil rights, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
This may allow a challenge to the excessive delay in equal pay cases. Excluding the right to bring an Industrial Tribunal claim on grounds of national security would not be justified, although the exceptions in the Article mean that the hearing could be in private. On the basis of ECHR decisions, thresholds and qualifying periods which exclude the right to bring claims do not amount to the denial of a fair trial.
There will also be implications for disciplinary bodies and tribunals which determine whether individuals can continue to practice a profession, for example the UKCC dealing with nurses and midwives. These proceedings must satisfy the requirements of the Convention and must be susceptible to challenge by judicial review in the courts.
Article 8
Right to respect for private and family life
Phone tapping of employees would not be permissible, but exceptions in the Convention may permit drug tests and medical questionnaires.
Article 10
Freedom of expression
Whistle-blowers may expect to gain a degree of protection, although the Convention does allow for the prohibition of disclosure of information received in confidence. This restriction only applies where the disclosure is prohibited by law, suggesting it is only where statute prevents disclosure, not where there is a restriction in a worker's contract which would restrict freedom of expression.
Article 11
Freedom of assembly and association
This is the Article which will have the most obvious impact on rights of trade unions and their members. The right to freedom of assembly may allow a challenge to the restriction to six pickets.
The right to freedom of association should mean more than merely the right to join a union. It should include the right to be represented by the union and not to be discriminated against on grounds of union membership or activity. These issues will be considered when the Wilson and Palmer cases reach the ECHR in the next year or two.
Article 14
Prohibition of discrimination
The Convention does not contain a general prohibition on discrimination, only a requirement that there must be no discrimination in the entitlement to Convention rights.
Making use of the Convention rights
UK courts must construe legislation to comply with the Convention rights. They are not obliged to fill gaps where existing law does not provide for rights, although they are under a duty not to act in a way incompatible with the Convention.
The Human Rights Act will not give rise to a new substantive claim for breach of the Convention, but it will mean that in any case an employee will be able to rely on the Convention where relevant. Courts are not given any new remedies (apart from the declaration of incompatibility).
For example, if an employee wins an unfair dismissal case because of a Convention right, she will still have only the existing unfair dismissal remedies. Inadequate remedies may be open to challenge as failing to comply with the Convention.
Claims can be brought by "victims of an unlawful act". This includes bodies such as trade unions, but only where the union itself has suffered damage: it cannot bring a claim on behalf of others.
The actions of public authorities
Public authorities are obliged to act in a way compatible with the Convention rights. Courts and tribunals are public authorities. There is a broad definition of other public authorities, but there is a catch.
A public authority is "any person certain of whose functions are functions of a public nature". This appears broader than the definition of an "emanation of the state" in European Union law. However, in a cryptic phrase, an authority within that definition will not be regarded as a public authority in respect of a private act.
UK cases have regarded employment rights in the public sector as matters of private law, not public functions. This appears to mean that the private employment law acts of authorities some of whose functions are public cannot be directly challenged under the Convention.
However, the legislation seems to leave open that some authorities are so obviously public that all their actions must comply, for example central government, which may mean employees can enforce Convention rights against those employers.
Rights brought to work
The Government talks of bringing rights home. Although the structure of the legislation may mean it is not straightforward to enforce Convention rights in the employment context, there is still scope for bringing the rights to the workplace. Legislation which is inconsistent with the Convention can be challenged and courts and tribunals must now construe legislation in a way compatible with the fundamental rights in the Convention.